Westboro Baptist Church vs. The People

Jim Wright has a fine post up over at Stonekettle Station today that's worth a read, concerning the recent decision involving Westboro Baptist Church's aggressive attacks on the public and a soldier's family that became collateral damage in 2006. The short version of what happened is this: Westboro Baptist Church (WBC) is an organization that has made itself and its founder, a moral cripple named Fred Phelps, famous in recent years for conducting various frothy demonstrations around the country in which they claim that God hates homosexuals and is punishing the United States in various ways for being a nation of filthy sodomites or some such nonsense; lately those protests have been held at or near the funerals of soldiers returning from Iraq and Afghanistan. In 2006, WBC held a demonstration near a funeral being held in Maryland for Marine Lance Corporal Matthew A. Snyder, killed in Iraq, and posted an inflammatory statement on their church's webpage claiming, in summary, that Corporal Snyder's parents were directly responsible for his death because they raised him as a Catholic. Cpl. Snyder's father, Albert Snyder, filed a lawsuit alleging five Maryland state torts: (1) invasion of privacy by intrusion upon seclusion, (2) intentional infliction of emotional distress (IIED), (3) civil conspiracy, (4) defamation and (5) publicity given to private life. The latter two claims were summarily dismissed by the court and the case proceeded to trial upon the first three (invasion of privacy, IIED and conspiracy). A jury found WBC liable and awarded damages totalling $10.9 million, which was reduced by the judge to a total award of $5 million. Upon appeal, the notoriously conservative Federal Fourth Circuit Court Of Appeals reversed the verdict; the defendants WBC having now prevailed, Albert Snyder is now on the hook for some $16,000 in attorney's fees. You can help Mr. Snyder out at this donation page; strike that--you should help Snyder out if you have a few bucks to spare.

Jim's take is, in many ways, rather noble: the WBC are rat bastards, yes, but the First Amendment protects rat bastards. This is true, and is the basis of the Fourth Circuit's car wreck of a majority opinion, which can be read here (PDF link) if you're unfamiliar with the high calibre of legal reasoning the Fourth Circuit Court Of Appeals is renowned for in legal circles and/or want to test the strength of your anti-migraine medicine. (I should also go ahead and say here in all fairness that Judge Shedd's minority opinion, concurring in the judgement, is actually fairly good and reasonable and reaches the same result as the majority opinion.)

The problem is that it's not actually that simple. The First Amendment isn't an absolute right and it shouldn't be. There are lots of things you can't say and do, even with the great protections of the First Amendment, and that's good unless you have a thing for violence and anarchy. You can't shout fire in a movie theatre, make a credible threat of violence against somebody, tell lies that destroy somebody's reputation, or take photographs of minors having sex (however "artistic" the tableau might be). Further, the limitations on government's ability to suppress or punish speech shouldn't be taken as a license for people to cause pain and suffering.

First Amendment jurisprudence represents an artful and frequently inconsistent attempt to parse the broad idealistic language of the First Amendment in terms of what is required for a functional civilization that respects not merely the right of speakers but also the rights of their possible victims. Should you threaten to park a truck full of explosives in front of my home because I'm an Obama-voting, ultra-left-wing, pro-choice, pro-gay-marriage, socialist-leaning, pro-national-health, atheist intellectual, it isn't enough and shouldn't be sufficient that your threat is hyperbolic or politically motivated--while I don't have a Constitutional right to a good night's sleep and a generalized feeling of safety in my own home, the sole point in the Constitution existing at all is to create a government that can protect me from, among other things, threats of violence. Your rights, as they say, terminate where mine begin.

That WBC has a right to say that "God hates fags" or to claim that any and all deaths of American soldiers are the product of American sodomy isn't even a question, much less an interesting one. What is a question is whether they can say this at a private citizen's funeral, or whether they can accuse a parent of murdering their child. The sacrosanct First Amendment rights of cretins does not include the right to intrude, defame or injure. And this was the question that Albert Snyder took in front of a judge and jury in Maryland. It is true that the government's enforcement of civil tort laws implicitly raises First Amendment issues--but what's the alternative you would proffer?

And here's the rub, and the reason the Fourth Circuit opinion is almost cartooney in its obstinacy and absurdity: Snyder, you'll recall, raised five questions, and only proceeded on three of them. Snyder's claim that he was defamed was summarily denied by the trial court. This was the claim most directly pertinent to the First Amendment; the remaining claims are more directly about the speech-related conduct of the WBC. Not whether the language of the signs at the funeral was protected speech, but whether showing up to the funeral at all in such a manner was an emotional blow to a grieving father that, per the evidence at trial, exacerbated his bipolar disorder and physical ailments. Yet the Fourth Circuit majority opinion seems dead-set on resolving the case under libel law, analyzing at some great length whether WBC's hate speech is political and whether a reasonable person reading it would think bad things about the Snyder family from reading it and so forth. It's not actually surprising that, in considering an irrelevant question, the Fourth Circuit strikes upon an irrelevant answer--of course nobody reading a "God hates fags" sign at a funeral will conclude anything bad about Cpl. Snyder or his parents, and therefore (among other reasons) the trial judge tossed that claim right out. The real question is whether the right of jackasses to parade with their signs outside a funeral--even if they do it in a designated zone and with appropriate permits, as the cretins from the WBC apparently did--trumps the right of a father to grieve in relative solitude and privacy at his boy's funeral.

This is where the minority opinion is at least sensible: "Although I agree with the majority that the judgement below must be reversed," Judge Shedd writes, "I would do so on different grounds. As I explain below, I would hold that Snyder failed to prove at trial sufficient evidence to support the jury verdict on any of his tort claims." Whether one agrees with Judge Shedd or not, I fear he makes a persuasive argument that Snyder, however much he suffered from WBC's conduct, didn't prove his suffering in a legally tortious sense under Maryland law.

The problem here, unfortunately, is that the WBC appealed on First Amendment law (of course they did), and although their arguments are more than a little dubious when applied to an IIED claim, the better issue--the sufficiency of the tort claims--is one that was actually raised in an amicus brief and therefore was arguably improperly before the court.

Lovely. One is reminded of the old saying, "Hard cases make bad law."

Snyder's case in the District Court did involve one instance of pure speech and not merely the muddled issue of speech-related conduct: you may recall that, in addition to picketing the funeral, WBC also posted a poisonous screed on their webpage in which they blamed Cpl. Snyder's death on his parents. Once again, the Fourth Circuit analysis reaches what might be the right result at a cost of an utterly ludicrous attempt at analysis. The Court writes:

Finally, the written Epic published on the website of the Church is also protected by the First Amendment, in that a reasonable reader would understand it to contain rhetorical hyperbole, and not actual, provable facts about Snyder and his son. The First Amendment issue concerning the Epic presents a somewhat more difficult question, however, because it is entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder. Such a title could lead a reasonable reader to initially conclude that the Epic asserts facts about this particular soldier. The Epic's subtitle, however, immediately connects its contents to the Defendants' protest and the various signs displayed there: "The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots! This Epic Adventure Took Place on Friday, March 10, 2006." The Epic has a photograph of the funeral protest immediately below its title, followed by nearly two pages of verbatim Bible verses. [cit. omit.]

In other words, I can publicly and otherwise libelously call you a liar so long as I append the words "big fat" to it--call it the "pants on fire" exemption to defamation. I won't say you are a pedophile and kiddie porn aficionado; no, you are an enormous, stinking pedophile who would shame a Prefect of the Congregation for the Doctrine of the Faith, one in possession of a veritable Alexandrian Library of child pornography--and here, to be safe, is a photograph of myself carrying a sign in public. Rhetorical hyperbole! Rhetorical hyperbole! I cannot be tagged. You remain It.

Of course, again, this is not merely ridiculous but also beside the point. The District Court agreed the website wasn't defamatory when they ruled in the jackanapes' favor on the motion for summary judgement. The real points, yet again, are whether the insult inflicted by a public accusation you murdered your son is tortious and if it is, whether the First Amendment rights of the tortfeasor immunizes him, her or it from liability. I'm inclined, perhaps selfishly, to contend that there should be a high threshold for proving that a stupid thing said by an obvious moron on the Internet should be taken seriously enough it left scars.

But at the same time, I'm far less-inclined to say the First Amendment should be a safe harbor for malicious misconduct. I don't have a Second Amendment right to drive by your house and shoot it up, now do I?

I regret that WBC caused grief and harm to Albert Snyder, but not every insult and injury is one that is recompensable. The conduct of the WBC was not merely ignorant, but hostile and evil. However, for the reasons Judge Shedd sets out in his concurrence, I'm afraid it isn't clear to me that the injuries WBC caused, however deep, were legally remediable under Maryland law. And amicus issue or no, I wish that's how the Fourth Circuit Court of Appeals had resolved the case--because I regret even more that WBC was allowed to hide behind a fig leaf of First Amendment prerogative; the issue should not be whether or not they can cart around their ridiculous little signs, but whether they can trespass on the private moments of families already suffering profoundly inconceivable and inconsolable losses while the WBC shits prance around and scream and stamp their infant hooves a few yards away. That this has become a question of free speech is, in some sense, an abrogation not of the Constitution, which tenders them some protections to publicly have their protests somewhere in plain view where people can see them make asses of themselves, but of the basic human decency the Constitution was meant to serve and foster.

UPDATE, 2010-04-09: This profile in The Baltimore Sun of Mr. Snyder and his son is worth a read when you have a chance.